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Loosely described, Gone Girl is a film about a wife who goes missing, a husband whose innocence is increasingly called into question, and a police investigation that is oh so right but which ultimately gets it oh so wrong. Like pregnancy, murder won’t save a bad marriage, but this film somehow does in fact manage to make murder seem like an agreeable option. Or, if not murder, at least death. And yet, for the accused husband, Nick Dunne (Ben Affleck), this is not terribly apparent at first. A good deal of the film is spent watching Nick trying to hopelessly worm his way out of the murder investigation. He doesn’t do a very good job. The film is narrated by missing wife, “Amazing Amy“ (Rosamund Pike). Her calm narrative, juxtaposed with Nick’s complete mismanagement of his own behavior whilst under investigation (his cheesy smile; his selfie with a local housewife, and his difficult to conceal for very long affair with one of his young students) leaves little doubt about Nick’s innocence.

Enter Tanner Bolt (Tyler Perry) – attorney extraordinaire. Tanner Bolt, said to be based on the famous Johnnie Cochran (O.J. Simpson’s Attorney) is known as the “Patron Saint of Wife Killers”. There is no such thing as an unwinnable case, providing you pay his $100,000 retainer. And you will. Because you don’t want to go down for killing your wife, particularly in Missouri where the death penalty applies.

Tanner Bolt’s role is limited in the movie but the part he does play is lawyer gold. He knows that image is everything – the details of the case can wait until later. He counsels Nick on how to make a plea to the American people via popular news shows using the unforgettable “gummy bear” method – whereby every time Nick comes across as smug or disingenuous in practice, Bolt gets to throw a gummy bear at his face. He attends the police interview with Nick and gives him the standard excellent legal advice pre-interview, (“give them nothing”), all of which Nick blithely ignores and yet he still manages to get him out on bail after his arrest – much to the chagrin of the Watchhouse officer: “Dunne, you’ve got one hell of a lawyer!”

But what I really love about Tanner Bolt, is not his legal prowess but his humanism. When Nick gives his instructions to his lawyer – and they are weird as hell instructions – Bolt doesn’t bat an eyelid. It’s not his job to question his client, it’s his job to advocate for his client and he backs him, laughing all the way. Bolt – who deals with “fucked up people” doesn’t mind telling his client that as far as fucked up people go, Nick’s right up there. But all of this is done in good humour and with the confidence of an attorney who knows that after this alleged killer, there will be another and then another and then another. Same shit. Different smell. What remains the same is this lawyer’s unshakeable belief in the importance of his role and his ability to do it better than anyone else.

Lawyers are often treated negatively in film. This is not one of those films. As a lawyer you finish watching the film with a little inner glow you reserve for times when you feel you have made a difference or when you see other lawyers make a difference. It’s gold.

“I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It’s when you know you’re licked before you begin but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.”

“I didn’t become a lawyer until the age of 37. I was the manager of a power plant and decided I needed a change.”
“What has been your greatest moment of glory as a lawyer?”
“Last year I had a case against an especially obnoxious attorney who thought for sure he was going to win. He was especially vicious toward my client, and the whole time he strutted around like he was in an episode of Law and Order. And I beat him.”

This month we make a slight departure from the theme of former lawyers in favour of an Australian barrister recognised more widely without her wig than with it. It will be no surprise to gossip magazine readers or Reality TV viewers that ‘Real Housewives of Melbourne’ star Gina Liano is currently a practising Criminal Barrister. The glamorous tall poppy’s fifteen year law career is taking a back seat as filming of the second series of ‘Housewives’ takes place. This does not mean that Liano’s courtroom prowess is going to waste. Liano has claimed that her assertive response to bullying by her co-stars on the television program was second nature after practising as a barrister for so long. Tensions in the show however could possibly be attributed to Liano’s legal career. Fellow ‘housewives’ have said that Liano sent them legal threats via email during the filming of their first season. According to Liano this was all a misunderstanding, she had merely copied her co-stars into an email sent to producers requesting that they not seek to portray her relationship break-up in a negative light. Liano says she was protecting her character from assassination and her relationship from scrutiny the best way she knew how, using the law.

It has been on my mind lately that we shouldn’t keep doing things if they don’t work: Life is too short.

My thoughts descended on a poem I learnt whilst idly letting my mind wander for a few years at Uni doing an Arts degree. It is called “In a Station of the Metro” by Ezra Pound and is coming up for its 100th year anniversary – but don’t worry, it has only 14 words!:

The apparition of these faces in the crowd;
Petals on a wet, black bough.

So, life is short. And beautiful. And dark. And everything else in between. And we are constantly observing all of this. So why do we keep doing things, seemingly waiting for someone else to take the lead, when we know there might be a better way?

Now you readers who have caught any of my blogs or indeed spoken to me in the last 5 years will know that I am very much focussed on family law situations and particularly situations of high conflict. So perhaps all you commercial litigators may want to tune out about now?

Hopefully not.

This blog is centred on the struggle for us as a society to find more humane ways of responding to abhorrent and otherwise inappropriate behaviours, without necessarily thinking that lawyers and courts and old school litigation is the only pathway through. I think we can learn a lot by looking at what many might think of as more primitive societies, where a communal, tribal response was the norm.

But for some reason we have not generally valued this approach, and as a society when there is a perceived or actual need to respond we have been more inclined to involve complete strangers in peoples’ lives (be it counsellors, police, lawyers, judges, etc). We then set off on a completely new path, to the “search for truth” and “for revenge” and “to vent our anger and hurt” in a forum where (at least in the family court, and certainly in the minds of many lawyers) it is a battle of attrition rather than looking for and valuing the ability of such ‘strangers’ and others who arguably are more invested in fulfilling such roles. What I am saying here is that we as lawyers should be more mindful about caring for the impact of the process that we are subjecting our clients to (and not forgetting we ask them to pay us for the ‘privilege’ of so doing).

Another point is that we as lawyers (and barristers and judges) seem to chronically under-acknowledge the damage that can be inflicted on a family by bringing them within the institution of the traditional legal system. For example, why do we as a society permit 20-something-year-old law graduates to think they know more about a family and what is appropriate and necessary for the members of a family, just because they know the law? It is not the fault of such lawyers (who are not necessarily only the 20-something-year-olds, either!) by the way, because my point is that potentially many family lawyers have not had the insight or life experience of trauma, tragedy, loss, and basically have not (you might say fortunately!) had to learn the life lessons of truly understanding and appreciating the impact of a badly handled family law matter where thousands of dollars, years of peoples’ lives, and the unknown impact of significant and sustained trauma and stress of emotionally charged litigation has ensued – and most tragically – has actually been encouraged and exacerbated by some lawyers.

Now, I acknowledge that this is a fairly inexact science because without the benefit of overlaying a “sliding doors” (I love that movie, btw) technology, we never see the actual difference between a family that has endured the cut and thrust of litigation, compared with, say the same family engaging in an interdisciplinary team collaboration. But I say why should we keep this cycle of potential damage spinning along, when it is arguably easier and more humanistic to (say) reverse the thinking and forcibly direct all family law clients to work with lawyers who have been accredited with skills and abilities to work with other professionals in a co-ordinated framework and structure that is geared toward building foundations for the future, instead of going to war?

Why can’t we take lawyers and courts out of the traditional dynamic and instead respond to family and couples who are experiencing the trauma of a separation by recognising the inherent value of using psychologists; financial advisors; counsellors; child experts AND lawyers (but to name a few) to respond in a holistic family focussed way that is consistent with the notion of cherishing and valuing the beauty of children and of a society that genuinely cares for the individuals within it.

So my message is to be a good lawyer, for sure, but don’t ever forget the bigger picture.

Major spoilers ahead. If you’d like to, watch it, then read Finchley’s review.

When I watched Hostage Flight, a made-for-TV movie from the 80s, it made me think about the dilemmas some lawyers face in deciding whether or not to represent a client who have committed repugnant crimes. Of course most lawyers will not end up representing terrorists, but on a general level there is a constant debate, even if it’s internal within the lawyer’s mindset, about whether to represent certain defendants. Outspoken barrister Peter Faris QC has clearly stated why he will never again defend rapists.

Introduce yourself as a lawyer to a lay person and before you know it they’ll soon be asking (or even demanding to know) “How can you represent a guilty person?” even if your specialty is conveyancing, legislative drafting or space law. I remember many years ago watching a US talk show where a Jewish lawyer, representing a person accused of committing hate crimes, said “He probably hates me!!” but still, the lawyer had no qualms taking on the case. In Australia, barristers can’t turn away clients due to the cab rank rule, but if I were a barrister I might find myself surreptitiously scheduling an operation, just like Queen Elizabeth II did to avoid personally conferring a knighthood on Mick Jagger (or so it has been alleged).

As a plane hijacking movie, Hostage Flight is a US TV drama movie that follows the well-established storyline: the terrorist hijackers board the plane, take the passengers hostage, demanding the release of their leader in a foreign prison, demonstrate brutality against the passengers, the motley crew of passengers (a cop, ex-sports star, journalist, the caring husband and wife who survived the Holocaust, the lawyer, the hothead who wants to fight it out with the terrorists right here, right now) plot to reclaim the flight, the terrorists as a concession release some passengers most of whom coincidentally don’t have any speaking parts, and then the ultimate confrontation.

What made Hostage Flight unique in the plane hijacking movie genre is its ending. Actually, two endings (more about that later). You may be wondering, does Hostage Flight end up with the terrorists being put on trial for murder, assault and hijacking? In a way, yes, and this is where Hostage Flight can be cathartic, especially in the wake of 9/11. It’s not surprising that following 9/11, Hostage Flight experienced renewed interest because at the end of the movie the passengers subdue the terrorists and in effect, put them on trial mid-air (the surviving three terrorists are buckled in their seats) as the flight approaches London.

In effect the passengers have appointed themselves judge and jury to take justice in their own hands, with one of the passengers waving a gun captured from the hostages. The “trial” throws up lines that whilst sounding clichéd, do resonate with public debates about criminal justice (or lack thereof) and the nature of the legal system we want to believe will work. One passenger wanting swift justice asks “Maybe they go to trial, go to prison, then what? Get traded for another group of prisoners? Can’t let it happen this time”, and another passenger asks “How can you guarantee they will be even sent to trial?” In which the police lieutenant responds that he can’t guarantee anything, but he believes in due process of the law even though he’s been frustrated by a “murder plea bargained to jay walking”, and it’s not his right to judge.

The trial continues with notions of justice and the law, “Who is talking about the law? We’re talking about justice”. So true, as law and justice are not necessarily synonymous. What is legal is not necessarily just. Remember it was legal many years ago discriminate on the grounds of race. Anti-abortionists will argue that abortion laws are unjust.

It’s clear in the mid-air trial that the terrorists (who aren’t given the right to present their case) will have difficulty getting any sort of fair trial, but as the passengers point out, they had already killed two innocent passengers, and some aren’t willing to “trust the hijackers’ fate to lawyers, petitions and government.” That really hits a nerve, because who will ever forget the controversy caused by the Scottish Government’s early release of Abdelbaset al-Megrahi in 2009 on “compassionate grounds”, who had been sentenced to life imprisonment for the Lockerbie plane bombing which killed all passengers, and some Lockerbie residents.

Back to Hostage Flight…the passenger who survived the Holocaust then speaks up, yes the terrorists are brutal but the worst thing they did was to “defile the law, breach the convenient by which we live in peace.” But exacting revenge would make them no better than the terrorists, and would make them lawless, breaking the laws of man and God.

“We must be just.”
“Where was their justice when they killed people?”
“We are taking responsibility.”
“But it’s revenge!”

But what about the lawyer passenger? He’s frank and probably sums up how many of us – lawyers and lay people alike – would really feel in such a mid-air trial. Yes he believes in due process of law but would never under any circumstance defence this “gutter trash” who “make war on civilians, kill women, children, and will seek protection of the very law that they are making a mockery of.” The lawyer concludes they are “beyond protection of our laws.”

Watching the “trial” in Hostage Flight reminded me of “Operation Wrath of God”, initiated by the Israeli Government to target those responsible for the murder of Israeli Olympic team members at Munich 1972. I remember watching an interview with a widow of one of the Israeli team members murdered, and she said that she received no satisfaction that those responsible for her husband’s murder ended up being killed through the Operation. When I recounted this interview to a Christian friend at church (who was a wife and mother of three children), she wasn’t convinced by the widow’s sincerity, saying that it’s easy for the widow to take the moral and just ground after her husband’s murders had “justice” extracted on them. I could sense that my church friend, who lives by God’s laws, had no qualm about the justice meted out to the terrorists who killed an Olympian who was also a husband and father.

Back to Hostage Flight…one of the passengers solemnly declares “We know what we have to do, we just need to guts to do it.” We then get one of two endings. Both are gruesome and violent in their own way. The original ending had the hot headed passenger shoot two of the terrorists after they tried to break loose, and much to his horror in the ensuing struggle, accidentally shot the police lieutenant. Sure a Quentin Tarantino movie is far more gruesome and explicit (Exhibit A: Kill Bill) but remember, Hostage Flight is a 1985 made-for-TV movie.

The word is that this original ending disturbed many viewers, so the producers called back the actors and filmed a second ending, where we see the passengers really have passed judgement. This second ending had the camera pan down aisle, passengers pondering what they have done as they approach landing, and at the back of the aisle you see the dangling legs of the three terrorists, having been sentenced to death by hanging. And viewers thought the first ending was more gruesome?

The full movie with the original ending is on YouTube, as is a video with both endings. You can decide for yourself which ending was just, if at all. Remember though, what’s just is not necessarily legal, and what’s legal is not necessarily just.

I have to admit to being slightly ol’ school. Some unkind people might call me daggy. But let’s not go there. I like my 80’s music. There, I’ve said it!

Now, to get to the point, I happily noticed that not only is Weird Al Yankovic still alive, but he is still making nifty music parodies. His latest one is of Robin Thicke’s Blurred Lines, which WAY calls ‘Word Crimes’ and I admit to liking the lyrics and the clip a lot.

It got me thinking about how many of us now seem to be more inclined to use the written word rather than verbal communication. And a few specific thoughts about this have since been occupying my mind.

For example, I lost count when I was a family lawyer about how many distressed clients would come to me really out of their head about the way in which a letter had been written to them by another lawyer (representing their ex-husband/wife/defacto/etc). To be honest, I probably wrote a few letters like that myself in my early years as a lawyer because it is so easy to be quite blunt and challenging when you have a client describing their interpretation of a situation to you and are paying you to do something about it. Not until later into my career could I recognise that I was contributing to the acrimony between parents by doing so, and that typically the Court takes a fairly dim view of a letter from a lawyer that might end up being annexed to an affidavit and tendered as evidence for some reason. I suppose my message here to lawyers is to think carefully about how we are writing and what purpose are we trying to really achieve…

I also thought about our clients, and I am talking about family law clients, who as parents seem to have overwhelmingly embraced SMS text messages to communicate with one another in relation to parenting arrangements. I think this is a curious phenomenon and am not aware of their being much written about it as a topic. Sure, I get it that when verbal communication is not going, or has not gone, well, then at least SMS provides an option for information to be communicated, but from my perspective is just too easy to rely on SMS as an apparent reliable method of communication. I use the word ‘apparent’ intentionally, as I think we have all experienced as sender and/or receiver, an SMS text message that has been misconstrued either intentionally or by accident. As a lawyer / mediator I have worked with many clients who have had this experience and at times the consequences of misunderstandings or intentional wind-ups can be catastrophic. And yet it could potentially have been completely avoided, or sorted, with a telephone call. But such a call never happened. I think this is an area of growing concern to me and one that I would like to look into.

Lastly, I was thinking about the way which we as lawyers perform our client work with other lawyers, and it seems that we are not as inclined to pick up the telephone and have a conversation with the ‘other lawyer’ in a matter as often as it used to happen. Instead, we seem quite happy to tap away at an email or letter and send it off, happily engaging in a method of communication that is costly for our clients (to draft, type, send, read, respond, etc) when perhaps an opportunity to have short circuited a long series of written communication by having a telephone discussion, has been lost.

Why are we doing this? I suggest that it is not for billing purposes (as I mischievously suggested earlier) but rather because we as lawyers seem to have disconnected from one another in the hustle and bustle and pressures of life as a lawyer in the 21st Century. We perhaps are not able to easily experience the camaraderie and connection with our peers (and opponents) as often as might have been possible in an earlier era, and more than that, as I have indicated earlier in this blog, we (as a society) seem more inclined than ever before to tap away at a computer screen rather than be engaging with others in a more direct and human way. I think this is also of concern when as a profession we are already assumed (generally) to perhaps be lacking in personal skills when working with our clients. I would like to think this is not true, but it does seem that perhaps we are not necessarily heading in the direction that we might want or need to be if we are aiming to deliver services and stay in touch with the people in the world in which we live, and work.

If you can imagine Atticus Finch pumped up on Red Bull, you get Al Pacino as the memorable Arthur Kirkland in the courtroom drama …And Justice for All. Kirkland, an idealistic lawyer of 12 years whose divorced wife has custody of their children, displays a weary compassion for helpless clients in his bustling Baltimore practice, yet doesn’t hesitate to see through his client’s lies, “Don’t lie to me!”. Kirkland reminds us of the frailties faced by players in the justice system.

We witness a defence lawyer’s nervous breakdown after getting a murder acquitted on a technicality, and then finding he subsequently murdered two children. We witness clients who are stuck in prison when they shouldn’t have been there. We witness another lawyer who represents well-healed commercial clients disparagingly refer to poor and marginalised clients as the “nickel and dime”.

Nickels and dimes. If I remade …And Justice for All, I would have said that a client’s money (or lack thereof) plays a significant role in determining the winner. That’s not to say this is right, but I’m sure even a lawyer with the idealism of Kirkland recognises this especially as the judge accused of rape (played chillingly by John Forsythe, for whom members of a certain generation will always remember as the conniving yet charming Blake Carrington in Dynasty) is one who with his privileged position has significant funds to spare in his defence, even if he virtually admits his guilt to a disgusted Kirkland.

Throw in race and you are also certain of knowing who the winner (or sadly) who the loser is. Van Badham, writing in The Guardian on 26 July 2013 drew a tale of two defendants both aged 27, one a law student, Liam Danial Sweeney (and son of a barrister may I add), convicted of glassing and bashing a man in an “unprovoked and gratuitous” assault at a birthday party at Melbourne Crown Casino. The other defendant, Kwementyaye Briscoe of Alice Springs, had committed no crime when the police in their wisdom decided to chase him, wrestle him to the ground and place him in “protective custody”. It’s not every day that a defendant in the Magistrate’s Court has a QC, but it just happens Sweeney did, and Ian Hill QC certainly earned his pay, with Magistrate Jack Vandersteen being moved to say, of a possible jail sentence, that he thought Sweeney would not last very long, “Not many people are in jail who went to Haileybury or who had your client’s privileged background”, with Hill helpfully adding “Or who look like him”. I can imagine high fives went around in Sweeney’s family when the Magistrate imposed an 18 month suspended sentence and a $5,000 fine. I can’t wait to see how Sweeney explains his conviction for assault to the Admissions Board if he ever wants to practise as a lawyer. Tragically Briscoe, an Aborigine, didn’t even have the opportunity to defend himself in a court (not that he needed to anyway, as he wasn’t charged with anything), as he died in police custody. Sadly again, no police officers were charged although I’m sure they managed to get over being “formally disciplined”. Nickels and dimes indeed.

…And Justice for All reminds me of the helplessness of clients facing government bureaucracies, who can wield power causing unjust situations that can, unless the client has a resolute lawyer not desperate for huge dollars, result in tragic consequences. Like my former client, faced with escalating penalty notices from the Victorian RTA for unpaid speeding fines, due to bureaucratic bungling in failing to record my client’s new postal address. I’m thankful that my law firm colleagues and I, after much investigation, persistence, stubbornness, were able to use the justice system (the Melbourne Magistrates’ Court thank you) to not only overturn the unpaid penalty notices, but also the original speeding fines. Strike that as a win for a client against the State.

I wish I could claim the same for Nathan Gordon, a victim of NSW RTA’s bureaucratic indifference and insensitivity in failing to recognise he could not be responsible for $10,000 worth of speeding fines, resulting in him incurring $20,000 to travel to courts around NSW to defend his case. Tragically, Gordon died as a result of serious head injuries, lying beside his pushbike which he was forced to ride because his licence was suspended for failure to pay speeding fines he wasn’t responsible for. Cold comfort that the RTA sympathised with the family for their loss, and no doubt this statement was carefully vetted by their lawyers. Hardly a just outcome.

…And Justice for All will stir you, move you and even reflect upon the marginalised clients who look to lawyers, who are just human after all, to get them out of their legal hole, yet just lack the much needed funds to achieve justice. You really learn that the movie’s title is sadly and tragically ironic.

Most good lawyers have had at least one mentor who has inspired or guided them in one direction or another. In fact, it is important to cultivate mentors to develop resilience as a lawyer. One of my great inspirations was my high school legal studies teacher. He was an extremely engaging man. He had a captivating presence in the room, and his commitment to his students was palpable. I remember vividly his robust interactions, and the dry wit of an intelligent, compassionate but slightly cynical humanist. He skillfully combined vision, realism and humour in a way that made you want to learn. In his class, I first felt the urge to practice law. I caught up with him recently at a law school alumni dinner and it was a very proud moment.

One of the risks of having many mentors is that you may get conflicting advice. This recently happened with one of my students, who had received some guidance from me about court appearances, and contrary guidance from another legal practitioner. I can say that the benefits of having mentors far outweigh the difficulties. The only way to deal with the difficulties is to acknowledge them, and recognize that advice is merely a suggestion based on personal experience and training. Everyone has different experiences, and one lot of advice may help you, whilst another may not. If you find it helpful, use it! If you don’t, file it away in the back of your mind until a later time – you never known when it might make sense.

What makes a lawyer a great lawyer?

I am afraid that my conception of a lawyer is skewed very much in the direction of a litigation lawyer. Despite being a Nationally Accredited Mediator, much of my time is spent in court, representing parties to litigation.

A great litigation lawyer is able to quickly perceive the broader picture of a dispute as well as pay special attention to the detailed facts. They have a deep understanding of what motivates humans, and can become temporary experts in the subject matter of any litigation in which they are briefed. They present the client’s case fearlessly and robustly in court, and at the same time encourage the client to resolve the dispute without the need for a contested hearing. They work co-operatively with their opponent, whilst maintaining their duty to the client, to further the efficient administration of justice. In sum, they are balanced in the exercise of their duties to the court, to the client and to the administration of justice, but they exercise those duties with a passion, a focus and a seriousness of purpose beyond that of any other profession.

Finally, let’s not forget good manners. It is easy, in the heat of contest, to become emotionally attached to the outcome of your case. This can lead to discourteous or even unethical behaviour. A great lawyer is always respectful of the court and court staff, of opposing counsel, of witnesses and of the parties to the proceeding. Courtesy breeds respect and co-operation.

How do you balance work and life?

The major difficulty in establishing and maintaining a so-called work/life balance is to recognize that it’s out of whack in the first place. After all, being a member of an independent bar is a vocation, or calling. That is why becoming a barrister is referred to as being called to the Bar. It comes with a sense of duty to further the administration of justice, to act honourably in the performance of that duty, to always aim to perform at one’s best and to a minimum standard of professional competence, and to meaningfully contribute to society.

In this sense, your work (or your membership of the profession) tends to become a foundation stone of your identity; it becomes, in part, the source of who you are. The intensity can make it easy to lose your balance. My advice? Always have a hobby which is beyond law and lawyers – something which keeps you in touch the life of ‘real’ people, people who don’t spend their lives developing arguments in their heads about how past events should be presented and interpreted and then debating it. Time and again, it is the quality of our relationship with our family and friends that keeps us happy and grounded, not our number of hours billed.

What attracts you most to the profession?

I would mention three things.

First is the sense of helping people solve their problems. Ironically, as a litigation lawyer, it is vital to recognise that most problems are better solved without litigation. Yet when disputes require judicial resolution because the parties simply cannot agree to settle, then it is a privilege to be entitled to represent them before the judicial arm of government. It provides a great sense of achievement.

The second is flexibility in work hours. At the Bar, it is possible to set aside time when you will not take on briefs, and though you don’t get paid for the time you don’t spend working, the upside is that you have control over your working life and you can allocate time to your family, friends or other pursuits.

Last, but certainly not least, are one’s intelligent and innovative colleagues, who have a great sense of humour. It is inspiring to spend the working day amongst some bright sparks. It would be hard to spend the lengthy amount of time intensely negotiating or appearing in court with my colleagues if I also didn’t enjoy their company.

A lawyer, a priest and a classicist walk into a bar. What does the lawyer say and why?

Tot mala iocos Quid faciemus?*

*Translates roughly as: ‘Why are we the butt of so many bad jokes?’

Randall Kune is a Barrister at the Victorian Bar, a Nationally Accredited Mediator, and a Senior Fellow at Monash University Law School. He has been in practice for nearly 20 years, and regularly trains and assesses law students, lawyers and new barristers in advocacy, evidence and procedure.

I wasn’t one of those who dreamed of the law from an early age. In fact my childhood dreams included being a nun (I had loved Audrey Hepburn in the movie A Nun’s Story (the fact I wasn’t Catholic was a slight problem), having lots of children to run through fields of grass with (pretty much Julie Andrews in The Sound of Music) or being a doctor. I was heading towards medicine when I realised at the end of year 11 that I did not much like the sight of blood and might need to rethink this choice. Then in year 12 I saw that there was a public speaking competition at my school. The first prize was books. I was an avid reader and no one else had entered from my school so I put down my name hoping to get the books. I won the books (as the only entrant at my school)! I then went on to win the regional competition, and finally represented Victoria in the national finals of the Australia Britain Society public speaking competition, held at the Sydney Opera House. It was heady stuff for a sixteen year old who at that stage had very little idea what she wanted to do. At that point I started to think that a career where I was paid to communicate well might be wonderful. I also wanted what I did to mean something, and to be able to help people, and law seemed to fit the bill.

What attracts you most to the profession of law?

It is always interesting. It involves people and the fascinating conundrums that develop every day in their lives – both business and personal. People come to see you when they are facing problems and you have the opportunity to make a very real difference to them by the way you handle their cases. The fact gathering and legal analysis and research you bring to the task can make all the difference to winning or losing, and it is very stimulating. The law itself keeps evolving, and there is always more to read, analyse and learn. I love the logic of the law, the problem solving involved in trying to find a way to best present a client’s case, the satisfaction of seeing the client relax a little as they realise you know what you are doing and are across the detail of their case, and the pleasure of trying to get the best result possible for them, whether by negotiating a settlement they are happy with or by fighting a case to the end. From the first time a case lands on your desk, to the conferences where you find out as much as possible about it, to the legal research and drafting, the negotiations, and the advocacy in court: it is all challenging and interesting. And you don’t need to watch daytime TV to see the range of human behaviour and interaction!

What are your passions outside of the law?

My family (including three children aged 12 to 19) and friends, writing, reading (all sorts of genres), history, drama, yoga, and finding out more about how people tick. I didn’t study psychology at school or university but have read and learnt a lot about it since. Understanding people and their motivations can make a big difference to outcomes in litigation -as well as life generally.

If you had your time again, would you choose to practice in law? If not, what else would you choose to do?

I would come to the Victorian Bar at the age of twenty-four all over again. I recently realised that I have been a barrister more than half my life. I have loved it.

If you could only give one bit of advice to new lawyers, what would it be?

Work as hard as you can on each case you take on because there is no substitute for good preparation – your client depends on you and you never know where that ‘killer’ winning point is lurking in all the detail – but along the way, keep making time for the other people and things that matter in your life. Is that two pieces of advice or one? The two are so intermingled I am going to treat them as one. You can’t work hard if you are continually exhausted; you can’t bring the intensity and interest you need to bring to your cases if you are not happy; and what is the point of having a great career if the rest of your life is awful? In the end you only have one life and you are in the driving seat – why not decide to do what it takes to enjoy that life, and to make your life (and career) work for you? It takes stopping to think about the balance every now and then, and sometimes ramping up work, and at other times adjusting what work you take on so you also have time for family, exercise, a coffee with friends, a break, and for doing things you love to do.

What would you say are the hazards of this profession?

First, the fact that you are dealing constantly with people who are in strife of one sort or another, and at times that can give you a skewed view of the world. Secondly, the pressures and need for long hours at times. When a trial needs preparing, and deadlines are looming, the work has to be done – and done well – whether you are tired or busy on other matters or not. Sleep can suffer for a while at least.

Is the reality of being a lawyer anything like how you imagined it?

I grew up watching LA Law, Rumpole and Ally McBeal (all of which dates me enormously now). Some of what I thought the law would be like from watching shows about lawyers still holds true though – the tactics, the drama of court, the great cross-examination questions, the chance to make all the difference to someone’s case. What the TV and movie dramas never showed – and still can’t or no-one would watch them – is the hours, days and even months of work that goes into those few exciting moments in court. There is much more time spent preparing for cases, drafting submissions and pleadings, and planning how to run them, than I appreciated. As a commercial lawyer a large percentage of cases never make it to court and the best result you can get for a client is often a great settlement negotiated outside of court. The satisfaction of being a lawyer, though, is much higher than I ever dreamed.

How do you balance life and work?

I stop every now and then and take stock, to make sure my life includes all the different parts that matter to me and that it doesn’t get out of whack for long periods of time. Whatever work I take on I do to the best of my ability, but I make sure that I don’t continually take on so much that I don’t have time for the people and other things that matter to me. (An easy test is that I usually feel a thrill of pleasure as each new matter comes in, I unwrap the pink ribbon around it, open the brief and start thinking about how to approach it. When I feel exhausted, that thrill isn’t there: it is yet another thing to add to an already too long ‘to do’ list. At that stage I know I need to schedule some time out – even if it is for after a busy patch, it gives me something to look forward to. I like the saying “When you say Yes to something, what are you saying No to?” Sometimes saying yes to too much work at once means saying no to all the other things and people that matter (including sleep, exercise and good health). That price is too high to maintain long term. In a practical sense, when necessary I schedule time away from work, time for exercise and coffees and time with friends and family in my electronic calendar as carefully as I schedule work commitments. Things get rescheduled, but having them recorded makes them more likely to be kept. For me, ‘balance’ doesn’t mean each day is balanced neatly between work, family, friends and time to myself – but that looked at over the course of days, weeks or even months the different aspects I want to have in my life are happening. And if they aren’t, I do something about it.

Samantha Marks QC has been a barrister at the Victorian Bar for twenty-five years. She took silk in 2010. She principally practices in commercial law, probate and TFM matters, in the Supreme and Federal Courts. She is also an accredited mediator, a member of the Victorian Bar Council and a past Convenor of the Women Barristers’ Association. Her legal blog ‘SamanthaMarksQC’ is at http://www.samanthamarkssc.com.